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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator Robert O. Harris filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Union filed an opposition to the
exceptions.

In resolving a grievance challenging the grievant's performance
appraisal, the Arbitrator ordered the appraisal rating raised to "excellent."
For the following reasons, we conclude that the award is deficient, in part,
and must be remanded to the parties for resubmission to the Arbitrator for
clarification.

II. Background and Arbitrator's Award

The grievant, a GS-12 Program Analyst, was rated by her immediate
supervisor at level 4 ("excellent") in job element number 1 ("Performs Analysis
as Assigned") for the 1990 appraisal year. An additional narrative for job
element number 1, prepared by the grievant's second-level supervisor, was
attached to the appraisal. That narrative provided as follows:

From my observation, she has met level three requirements but has not
yet treated issues in depth nor developed useful trend analysis without
supervisory help. She needs to improve on considering and weighing options and
presenting recommendations.

Award at 5. The second-level supervisor reduced the rating on this
element from level 4 to level 3 (fully satisfactory).

The grievant filed a grievance alleging that the rating should not have
been lowered. When the grievance was not resolved, it was submitted to
arbitration. The Arbitrator framed the issue before him as follows:

Should grievant have received an "excellent" rather than a rating of
"fully satisfactory" on a critical element of her performance plan for the
rating period . . . ?

Id. at 2.

The Arbitrator noted the grievant's testimony that her performance
plans for 1989 and 1990 contained a job element which encompassed, among other
things, trend analysis, and that she had not been informed that there were
different expectations of her in 1990 than there had been in 1989. The
Arbitrator also noted that the grievant had not been asked to perform a trend
analysis prior to the 1990 appraisal year. The Arbitrator credited the
testimony of the grievant's immediate supervisor that he helped the grievant
with trend analysis in 1990 and that this help was "on the job training."
Id. at 7. The Arbitrator pointed out that the grievant had been rated
"excellent" on the disputed job element in 1989 without performing a trend
analysis, and that the grievant's immediate supervisor rated the grievant as
"excellent" on the element for the 1990 appraisal period. In this regard, the
grievant's second-level supervisor testified that he lowered the rating only
after his supervisor (the grievant's third-level supervisor) told him that the
performance ratings in the grievant's division were too lenient.

The Arbitrator concluded that the Agency violated the parties'
collective bargaining agreement, Agency Employee Performance Management System
(EPMS) guidelines, and Health and Human Services (HHS) Instructions by failing
to provide the grievant with a timely progress review. The Arbitrator also
concluded that these regulations require employees' immediate supervisors to
prepare ratings and that second-level supervisors were responsible only for
approval, "and, tacitly," disapproval of ratings. Award at 16. The Arbitrator
found that reviewing officials were not authorized under the regulations to
appraise employees.

The Arbitrator concluded that the second-level supervisor "wrongfully
changed" the grievant's rating on job element number 1 and that "but for the
influence of" the third-level supervisor on the second-level supervisor, the
grievant's rating would not have been changed. Id. at 17-18.

The Arbitrator concluded, citing Social Security Administration and
American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988)
(SSA I), that he had sufficient information to "make the appraisal."
Award at 18. In this regard, the Arbitrator stated that "[i]f the trend
analysis assignment is excluded from [the] grievant's appraisal, it is clear
that her performance was at least as good in 1990 as it had been in 1989."
Id. The Arbitrator concluded that, in view of the grievant's
inexperience in this work and the Agency's inability to provide formal training
due to budgetary constraints, the grievant's ability to perform trend analysis
should not have been judged until her on-the-job training was completed. The
Arbitrator found that such training was completed after the 1990 appraisal
period. The Arbitrator stated that, as the grievant did not receive a timely
progress review, "even if she had completed her on-the-job training, she would
not have been able to correct any deficiencies that might have been noted in
her performance." Id. at 19.

The Arbitrator concluded that the grievant "should have received a '4'
on job element number 1 in the rating which was originally given her by [the
immediate supervisor]." Id. Accordingly, as his award, the Arbitrator
sustained the grievance and directed the Agency to provide the grievant a
rating of 4 on job element number 1.

III. Exceptions

The Agency argues, based on the Authority's decision in U.S.
Department of Health and Human Services, Social Security Administration and
American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990)
(SSA II), that the Arbitrator improperly cancelled the grievant's
performance rating. In this connection, the Agency claims that the Arbitrator's
award is based on his erroneous findings that the grievant's rating "could not
be changed by a reviewing official[,]" and that the Agency failed to provide
the grievant with a progress review mid-way through the appraisal period as
required by the parties' collective bargaining agreement. Exceptions at 15.
According to the Agency, EPMS guideline section IV.B(1) and HHS Instruction 430-4-40E(2) specify that reviewing officials
may change an employee's rating "as long [as] that change is documented."
Id. at 17.

The Agency also contends that the Arbitrator "misread[]" Article 13,
Section 9 of the parties' collective bargaining agreement.(3) Exceptions at 20. According to the
Agency, the parties' agreement mandates a progress review mid-way through the
performance period only "if that performance period lasts a full twelve
months." Id. In instances where the performance period is less than 12
months, the Agency argues that the agreement states only that there "should" be
a progress review mid-way through the performance period. Id.

The Agency also argues that the award is deficient because the
Arbitrator improperly raised the grievant's rating. In this connection, the
Agency maintains that the Arbitrator altered the content of one of the
grievant's established performance standards by excluding the grievant's trend
analysis assignment from the appraisal process. The Agency also maintains that
the Arbitrator failed to apply the established standards and relied instead on
the grievant's 1989 performance appraisal to rate the grievant's performance in
1990.

IV. Opposition

The Union contends that the award is consistent with the Authority's
decisions in SSA I and II. The Union asserts that the Agency is
simply disagreeing with the Arbitrator's award. The Union also argues that the
award draws its essence from, and is an appropriate interpretation of, the
parties' agreement.

V. Analysis and Conclusions

A. Agency Regulations

According to the Agency, the Arbitrator erroneously interpreted Agency
regulations as precluding a reviewing official from changing an employee's
rating. We construe this argument as a contention that the award is contrary to
Agency regulations.

The Arbitrator found that, under the disputed regulations, a reviewing
official could approve or disapprove ratings prepared by an appraising
official, but could not actually appraise an employee. Contrary to the Agency's
argument, nothing in the regulations relied on by the Agency provides to the
contrary. Accordingly, we conclude that the Agency's argument is an attempt to
relitigate the merits of the grievance before the Authority and constitutes
mere disagreement with the Arbitrator's findings. As such, this exception
provides no basis for finding the award deficient. Id. at 1104.

B. Essence of the Parties' Agreement

We construe the Agency's assertion that the Arbitrator misread the
parties' agreement as a contention that the award fails to draw its essence
from the agreement.

To demonstrate that an award is deficient because it fails to draw its
essence from an agreement, a party must show that the award: (1) cannot in any
rational way be derived from the agreement; (2) is so unfounded in reason and
fact, and so unconnected with the wording and the purpose of the agreement as
to manifest an infidelity to the obligation of the Arbitrator; (3) evidences a
manifest disregard of the agreement; or (4) does not represent a plausible
interpretation of the agreement. For example, U.S. Department of the
Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma,
and American Federation of Government Employees, Local 916, 44 FLRA 283,
286 (1992) (Tinker).

The Arbitrator determined, based on his interpretation of Article 13,
Section 9(B) of the parties' agreement, that the Agency violated that provision
when it conducted the grievant's progress review in the fifth month of a
6-month appraisal period. Nothing in the Arbitrator's interpretation of the
agreement is irrational, unfounded, implausible, or in manifest disregard of
the agreement. In our view, the Agency's argument constitutes mere disagreement
with the Arbitrator's interpretation of the agreement and, as such, does not
demonstrate that the award fails to draw its essence from the agreement. For
example, Tinker, 44 FLRA at 286.

C. Cancellation of Grievant's Rating

In SSA I, the Authority reexamined the remedial authority of
Arbitrators in performance appraisal matters. In SSA II, the Authority
described SSA I as "establish[ing] a two-prong test":

First, an arbitrator must find that management has not applied the
established standards or has applied them in violation of law, regulation, or a
provision of the parties' collective bargaining agreement. If that finding is
made, an arbitrator may cancel the grievant's performance appraisal or rating.
Second, if the arbitrator is able to determine based on the record what the
performance appraisal or rating would have been had management applied the
correct standard or if the violation had not occurred, the arbitrator may order
management to grant that appraisal or rating. If the arbitrator is unable to
determine what the grievant's rating would have been, he must remand the case
to management for reevaluation.

SSA II, 34 FLRA at 328.

As to the first prong, the Arbitrator here found that the Agency
applied the grievant's performance standards in violation of the parties'
collective bargaining agreement and relevant Agency regulations. We have denied
the Agency's exceptions to these arbitral findings. Accordingly, we conclude
that the Arbitrator properly cancelled the grievant's "fully successful"
performance rating for the disputed job element.

D. Determination of Grievant's Rating

Under SSA II, an arbitrator may not raise a performance rating
unless the arbitrator is able to determine, from the record, what the
employee's performance rating would have been if the relevant violation of law,
regulation, or collective bargaining agreement had not occurred. If an
arbitrator is unable to make such determination, the matter should be remanded
to the agency for reevaluation of the grievant.

Here, the Arbitrator stated that he had "sufficient information to make
the appraisal." Award at 18. In his subsequent discussion of this matter, the
Arbitrator stated that the trend analysis performed by the grievant during the
1990 appraisal year should be excluded from her 1990 appraisal. In addition,
the Arbitrator stated that, as the grievant did not receive a timely progress
review, she would not have been able to correct any deficiencies in her trend
analysis even if that analysis properly were included in the appraisal. Based
on these two statements, the Arbitrator concluded that the grievant should have
received the rating initially granted her by her first-level supervisor.(4)

We conclude that the Arbitrator improperly altered the content of an
established performance standard by excluding the grievant's performance of
trend analysis from her appraisal. By excluding such analysis, the Arbitrator
"determined what the grievant's rating would have been under standards
different from those established" by the Agency. SSA I, 30 FLRA at
1163. As such, this portion of the award is deficient as contrary to
management's rights to direct employees and assign work under section 7106(a)
of the Statute. Id.

Although the Arbitrator also discussed the Agency's improper failure to
provide the grievant with a timely progress review and stated that the grievant
should have received the rating granted her by her first-level supervisor, we
are unable to determine from a reading of the award as a whole whether, or to
what extent, these grounds are independent of the Arbitrator's improper
exclusion of trend analysis from the grievant's appraisal. In particular, the
Arbitrator's discussion of the progress review appears linked to the trend
analysis findings and, in addition, the reference to the grievant's initial
rating is expressly linked by the Arbitrator to both previous findings. In
these circumstances, we are unable to determine whether the Arbitrator properly
raised the grievant's rating based on his review of the record and his
determination of what the rating would have been if the Agency's violations of
the applicable regulations and the parties' agreement had not occurred.
Accordingly, we will remand this matter to the parties who, absent settlement,
should request the Arbitrator to clarify his award.

VI. Decision

The award is remanded to the parties for resubmission to the Arbitrator
for clarification consistent with this decision.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. EPMS Guideline section IV.B.
provides, in pertinent part, that reviewing officials are responsible for
"[r]eviewing and approving ratings of record and documenting any changes[.]"
Exceptions, Tab D at 4.

(B) Progress reviews provide the opportunity to identify and resolve
problems in the employee's performance. Where the appraisal period lasts a full
twelve (12) months, there will be at least one documented progress review which
must occur six (6) months into the annual performance period.

. . . .

2. There should be a progress review mid-way following the
establishment of a new performance period.Agency Exceptions,
Tab C at 26.

4. We reject, in this regard, the
Agency's argument that the Arbitrator did not apply the grievant's performance
standards in determining her rating and, instead, relied on the grievant's 1989
appraisal. Although the Arbitrator referenced the grievant's rating in 1989, we
find it clear from a reading of the award as a whole, that the Arbitrator did
not base his award on that rating.